The Court at War

FDR, His Justices, and the World They Made

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By Cliff Sloan

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The inside story of how one president forever altered the most powerful legal institution in the country—with consequences that endure today 

By the summer of 1941, in the ninth year of his presidency, Franklin Roosevelt had molded his Court. He had appointed seven of the nine justices—the most by any president except George Washington—and handpicked the chief justice.
 
But the wartime Roosevelt Court had two faces. One was bold and progressive, the other supine and abject, cowed by the charisma of the revered president.
 
The Court at War explores this pivotal period. It provides a cast of unforgettable characters in the justices—from the mercurial, Vienna-born intellectual Felix Frankfurter to the Alabama populist Hugo Black; from the western prodigy William O. Douglas, FDR’s initial pick to be his running mate in 1944, to Roosevelt’s former attorney general and Nuremberg prosecutor Robert Jackson.
 
The justices’ shameless capitulation and unwillingness to cross their beloved president highlight the dangers of an unseemly closeness between Supreme Court justices and their political patrons. But the FDR Court’s finest moments also provided a robust defense of individual rights, rights the current Court has put in jeopardy. Sloan’s intimate portrait is a vivid, instructive tale for modern times.
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  • “[A] probing chronicle…Blending legal analysis of cases such as Korematsu and a handful of others with short profiles of the members of the court, Sloan probes the justices’ motivations and shortcomings as he examines the institution’s inner workings…In a world beset by rising domestic and global threats, it’s fair to ask whether today’s court would falter as it did in Korematsu if asked to safeguard civil liberties during times of peril. In casting a bright light on this issue, Sloan’s thoughtful book will better prepare the nation for that moment.”
    Michael Bobelian, Washington Post
  • “At a time when the constitutional order feels archaic, and the Supreme Court is once again firmly in the hands of appointees from a single party, many observers are mining past periods of consensus and progress for understanding—and perhaps inspiration. A new book, The Court at War, is a highly readable contribution to this trend… The historical figures in The Court at War are colorfully rendered; the action moves briskly… Above all, one comes away from this insider account with a stunning sense of the porousness of the Supreme Court to other elite actors within the Beltway… Sloan has written an eminently readable book.”
     
    Robert L. Tsai, Washington Monthly
  • "What makes the book a valuable contribution to Supreme Court history is the deft way he marshals long-available evidence to stitch together a portrait of a Court that in important respects lost its bearings under the sway of the powerful man to whom its members owed their jobs."
    Linda Greenhouse, Lawfare
  • "The author . . . delivers an account of a Supreme Court shaped by one president (he had appointed seven of the justices) during the fraught intersection of civil liberties with the exigencies of World War II and extraordinary executive power. Sloan’s brisk narrative is pertinent to today, when presidential candidates jockey for support promising to further transform, and politicize, the Court."
    Harvard Magazine
  •  “Mr. Sloan, a professor of constitutional law at Georgetown, offers a balanced assessment of the wartime court… Mr. Sloan’s historical scholarship is impressive.”
    Barton Swaim, Wall Street Journal
  • “A remarkable account of the comings and goings of Supreme Court justices during World War II. Page after page, Sloan describes in rich detail interactions between members of the Supreme Court and Roosevelt or his top advisors, almost any one of which would probably cause a serious flap today about judicial ethics and impropriety.  These details are by no means idle gossip, and in the deft storytelling hands of Sloan, they are a fascinating read…. Sloan has amassed a voluminous quantity of information that he shares in a highly readable narrative.”
    Washington Lawyer
  •  “Alongside astute case analyses, Sloan vividly explores the fractious relationships between justices whose judicial philosophies, personalities, and backgrounds radically differed. The result is an accessible narrative that highlights how the forces of history, politics, and personality influenced one of America’s most important institutions at a critical time in history. It’s an entertaining and worthwhile account.” 
    Publishers Weekly
  • “A wide-ranging legal history that shows that the Supreme Court is never truly divorced from the politics of the day.” 
    Kirkus
  • "Thoroughly researched, eminently readable, and sharply insightful."
    Hon M. Margaret McKeown, Ninth Circuit Court of Appeals, Western Legal History
  • “The story of FDR’s unsuccessful effort in the late 1930s to ‘pack’ the Supreme Court is well known. The Court at War tells the fascinating story of what happened later. As FDR filled numerous Court vacancies, and the country became engulfed in WWII, he ended up getting the supportive Court he had long wanted. Cliff Sloan’s deeply researched account of relations between the ‘War Court’ and FDR during the early 1940s—complete with insightful portraits of the justices—demonstrates we still live in a legal world shaped by the events of those momentous years.”
    Annette Gordon-Reed, Pulitzer Prize–winning historian
  • “Although much has been written about the government’s actions during World War II, this is the first in-depth examination of the Supreme Court during this time. Sloan’s beautifully written book tells this story and makes it compelling by focusing on the people involved in litigating and deciding the cases. The book is filled with a wealth of new information and will surely be regarded as the definitive work about the Court during this pivotal point in American history.”
    Erwin Chemerinsky, dean, Berkeley Law School
  • “So much has been written about FDR’s battle with the Supreme Court, not enough about the operations of the court he then assembled. With the insight of a lawyer and the craft of a storyteller, Sloan provides a compelling, textured account of the third branch at a pivotal moment in history. The Court at Waris a gripping, behind-the-scenes look at an institution that at times rose heroically to the moment, producing enduring victories for free speech and civil liberties, and at times shamefully succumbed to the perceived needs of a nation at war and the ugly prejudices of the era. At a time when the high court is again in the headlines and under scrutiny, Sloan’s rich portrait of the justices and the president with whom they served—often too closely—offers a timely reminder of the achievements, and imperfections, of a court whose lessons resonate today.” 
    Ruth Marcus, Washington Post columnist
  • “Conventional wisdom suggests we know all we need to know about FDR and the Supreme Court. Thank goodness Sloan has excavated the much more interesting and dramatic saga of the wartime Court and its eerie echoes to today.”
    Ken Burns, filmmaker
  • “In this masterful new book, Sloan sheds revelatory light on a pivotal period in American law. Weaving together painstaking archival research, close readings of legal briefs and judicial opinions, and absorbing descriptions of the lives and relationships of the Court’s justices—including their relationships to the larger-than-life president who appointed them—Sloan reveals the long shadow of the war not only on familiar cases like the Nazi saboteur case Ex parte Quirin and the infamous Korematsu v. United States, but also on disputes involving compulsory flag salutes, forced sterilization, and all-white primaries. The book is essential reading—and an urgent reminder of the degree to which the Supreme Court has always been embedded in the larger political life of the nation.” 
    Kate Shaw, ABC News commentator, cohost of Strict Scrutiny podcast, and professor, Cardozo Law School
  • The Court at War provides an in-depth look at the workings of the US Supreme Court and the relationships among the justices and political officials during World War II, including how, at times, it was a court at war with itself. Sloan has written a thoroughly engaging account that helps us to understand better a court that produced remarkable changes that advanced civil rights and civil liberties in the context of voting rights for African Americans, free speech rights for disfavored religious minorities, and reproductive rights while simultaneously producing the civil-rights disaster in its cases involving the treatment of Japanese Americans.”  
    Robert Chang, Korematsu Center for Law and Equity

On Sale
Sep 19, 2023
Page Count
512 pages
Publisher
PublicAffairs
ISBN-13
9781541736481

Cliff Sloan

About the Author

Cliff Sloan is a professor of constitutional law and criminal justice at Georgetown University Law Center. He has argued before the Supreme Court seven times. He has served in all three branches of the federal government, including as Special Envoy for Guantanamo Closure, and is the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court. His commentary on the Supreme Court and legal issues has appeared in the New York TimesWashington PostSlate, and other publications, and on television and radio networks.

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